Labor Relations Law Blog

While organized labor was dealt a major setback by the Supreme Court in Janus v. AFSCME, the landmark ruling does not impact the legality of union security clauses in the private sector.    In Janus, the Supreme Court held that the state’s extraction of union dues from non-consenting public employees violates the First Amendment.  The Court overruled Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which held that state and local governments could lawfully require public employees to pay “agency fees” as a condition of continued employment.  Agency fees are intended to cover costs related to contract negotiation, grievance processing, and contract administration, but are meant to exclude costs related to union lobbying and political activism.  Following Janus, public employees can no longer be compelled to contribute any dues to unions, including so-called agency fees.

In a 1975 case called NLRB v. J. Weingarten, the U.S. Supreme Court first set forth employees’ rights to representation during an employer interview. Over the past 43 years, these “Weingarten rights” have been refined by the National Labor Relations Board and the courts. Weingarten rights issues still arise and are still litigated. For instance, last year the D.C. Circuit Court of Appeals held that Weingarten rights did not apply when an employee was put on paid suspension pending an investigation (Bellagio v. National Labor Relations Board) or when an employee participated in a non-compulsory interview with a peer review committee (Midwest Division-MMC, LLC. v. National Labor Relations Board).

On February 25th, the National Labor Relations Board unanimously vacated its December 2017 ruling in Hy-Brand Industrial Contractors, Ltd., which determined standards for establishing joint employer relationships. This action was taken after the NLRB’s Inspector General reported that Board member William Emanuel had a conflict of interest when he ruled on the case.

On February 20th, the United States Supreme Court ruled that in a collective bargaining agreement, no ambiguities should be interpreted by the absence of a provision concerning the duration of retirees’ healthcare benefits. Benefits clearly expire when the collective bargaining agreement itself expires. The Supreme Court’s decision, CNH Indus. N.V. v. Reese, was unanimous.

The National Labor Relations Board is considering modifying its case processing procedures in ways that could benefit employers, according to an internal NLRB memorandum obtained by the paid subscription service Bloomberg Law.

On January 12, President Trump selected Republican John Ring to fill the vacancy created last month by Philip Miscimarra's departure from the five-member National Labor Relations Board. If Ring is confirmed by the Senate, the NLRB will have three Republican and two Democrat members.